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Here’s another edition of “Ask Sophie™,” the advice column that answers immigration-related questions about working at technology companies.
“Your questions are vital to the spread of knowledge that allows people all over the world to rise above borders and pursue their dreams,” says Sophie Alcorn, a Silicon Valley immigration attorney. “Whether you’re in people ops, a founder or seeking a job in Silicon Valley, I would love to answer your questions in my next column.”
Dear Sophie,
I’m a software engineer who is currently on an H-1B. My employer sponsored me for an EB-2 green card and my application has been approved, but I’m still waiting for a decision on my application to register for permanent residence.
I want to leave my employer and do something completely different. Can I transfer my green card to another employer in a different field and position or should I stick it out in my current position until I receive my green card?
If I should stick it out, how long should I stay with my current employer after I receive my green card?
— Craving Change
Dear Craving,
As my dad (also an immigration lawyer) would always say, here is one of those classic lawyers’ answers: “It depends.” It’s so exciting when a company is willing to sponsor you for a green card, but things can change fast, especially in the Valley. The past couple of years has been a time of self-reflection and reassessment as many have reassessed their own careers and considered pivots. Thanks for reaching out and here’s an overview of some of the general options!
Can I transfer my green card?
The American Competitiveness in the Twenty-First Century Act (AC21) makes it possible for some professionals to transfer their employment-sponsored green card process from one original employer to another without giving up their “spot in line.” It has various conditions, such as:
- The I-485 (Application to Register Permanent Status or Adjust Status), the final step after filing the I-140 green card application, must have been pending with U.S. Citizenship and Immigration Services (USCIS) for at least 180 days since filing; and,
- The new job is in the “same or similar” field as the job for which the original green card application was filed (this involves a complicated legal analysis based on a variety of factors).
Some of the factors USCIS will consider include the following:
- The job title
- The required job duties and skills
- The experience and education required
- The salary offered
- U.S. Department of Labor (DOL) occupational code, according to the Standard Occupational Classification (SOC) system
- Whether the new job reflects a career advancement from the prior job
- As well as other factors
If the new employer is a startup and you were at a big tech company before, the analysis is more complicated. If the startup doesn’t have an immigration lawyer yet, it’s important they get one for this process and to ensure your eligibility before you accept any offer.
If the prospective new job you are looking to take is not the “same or similar” to the one listed in your green card application by your current employer, then your prospective new employer must begin a new green card process and file a new I-140 green card application, and they might be able to reuse your old priority date if you already (likely) have one.
Note that once a green card petition (I-140) submitted by a sponsoring employer has been approved, the priority date moves with the employee to a new employer. The priority date is often either:
- When the PERM labor certification was filed for an EB-2 or EB-3 green card
- The date of filing the I-140 for an EB-1A or EB-2 NIW
There are other variations as well. Even though your new employer would have to invest in starting the green card sponsorship process again, reusing your priority date will retain your overall place in the green card line, which is especially important if you are subject to the India and China green card backlogs!
Should I stick it out?
The answer to this question will depend on your goals, personal circumstances, and patience in waiting for a green card. I’m also a strong proponent of self-care. Consult an immigration attorney, who can better assess your options based on the specifics of your situation.
Keep in mind that premium processing is available for the EB-1A extraordinary ability green card! With premium processing applied, USCIS will make a decision on an EB-1A I-140 application or issue a request for evidence within 15 days. Expanded premium processing options are on the horizon for the EB-2 NIW category as well.
How long should I stay at my company?
The law does not specify how long an individual must remain with an employer that sponsors the individual’s green card after the green card is issued. The whole point of a green card is to provide the future opportunity for good faith, a permanent role at a U.S. company, so there is definitely a legal expectation that if your I-485 is approved, you work for the sponsoring employer for some time.
If you decide to stick it out with your current employer, talk to a personal immigration attorney about how long you are required to stay. Many immigration attorneys recommend that individuals not change employers or positions for six months to a year after your I-485 is approved to demonstrate that they acted in good faith, but any specific, individualized legal advice can tend to vary depending on a variety of factors such as:
- If you have an agreement or contract with your employer that outlines how long you must stay if your employer sponsors you for a green card.
- If you have a valid reason for leaving your employer even soon after receiving the green card such as if you are not being paid the promised wage, you are being harassed, you need to move, or there is not enough work for you to do.
- Or other reasons.
Keep in mind, too, that if you eventually apply for citizenship, USCIS will likely check how long you remained with the employer that sponsored your green card and could question your intent when entering the green card process and whether you acted in good faith based on your tenure at the sponsoring company. This would be another consideration to discuss with your immigration attorney.
You’ve got this!
Reassessing a career choice is what my friend, colleague — an immigrant herself — Nassim Aranzi did! As a securities lawyer, she once filled in for a colleague on an imminent deportation case. It was at that moment that she realized the immigration system can make people feel disempowered for so many reasons. Nassim set out to change her course and help people in need. Her chat with me talks about the power of the mind and how you can control your mental chatter to help you reach any goal, including immigration!
Always keep in mind that positivity, persistence, and a prudent plan are keys to making it through the immigration process.
Follow your heart!
— Sophie
Have a question for Sophie? Ask it here. We reserve the right to edit your submission for clarity and/or space.
The information provided in “Ask Sophie™” is general information and not legal advice. For more information on the limitations of “Ask Sophie™,” please view our full disclaimer. You can contact Sophie directly at Alcorn Immigration Law.
Sophie’s podcast, Immigration Law for Tech Startups, is available on all major platforms. If you’d like to be a guest, she’s accepting applications!
